Public Bill Committee

[Janet Anderson in the Chair]

Clause 9

Restrictions on disclosure of juror information

Lady Hermon: I beg to move amendment No. 31, in clause 9, page 6, line 24, leave out
‘in the course of his functions as’
and insert ‘whilst’.
I am delighted to sit under your chairmanship this morning, Mrs. Anderson, as we resume this interesting Committee on the Justice and Security (Northern Ireland) Bill. Clause 9 deals with restrictions on disclosure of juror information. It adds an important restriction to the Juries (Northern Ireland) Order 1996 on the disclosure of juror information that has come into the possession of various people through, for example, the electoral office and their work.
Committee members will have noticed the significant penalty. Proposed new article 26A(8) says:
“A person who contravenes paragraph (1) shall be guilty of an offence and shall be liable”
to a hefty fine or six months’ imprisonment, or indeed to both. The penalty for any criminal offence committed in contravention of proposed new paragraph (1) is severe.
My amendment relates to some rather curious wording. It pertains to
“a person who is or has been an electoral officer or a court official”.
Proposed new paragraph (2)(b) means that an offence is committed only if the person who is or has been an electoral officer or a court official obtained the juror information
“in the course of his functions as an electoral officer or court official.”
I dislike that wording because it is ambiguous. It implies that the person was acting appropriately when they obtained the information.
My amendment represents no slight on, or criticism of, the staff of either the courts or the electoral office. It attacks the Bill’s wording, because it implies that a person in either the electoral office or the court obtained the information relating to juries in the course of his functions. It implies that they have obtained it appropriately.
It is possible for an electoral officer or a court official to obtain juror information inadvertently, or of course deliberately, not in the course of his functions, but in walking past a desk and appropriating it. I have tabled the amendment to tease out the Minister’s explanation about why
“in the course of his functions”
 is set out only in proposed new paragraph (2)(b), and not elsewhere when it qualifies the other people and the work that they do in obtaining juror information.

Bridget Prentice: It is a delight to serve under your chairmanship, Mrs. Anderson. You are always firm and fair, although I suspect that the former will be unnecessary because the Committee has made good progress in a co-operative fashion.
I have thought deeply about the amendment, and I would very much like to grant the hon. Lady the opportunity to amend the Bill. I have asked detailed questions about it because she has scrutinised the legislation assiduously. It would have been a pleasure to tell her that the amendment was satisfactory. Sadly, that will not be the case, but I hope that what I say will reassure her about why the wording is as it is.
Proposed new article 26A makes it an offence for certain officials who obtain information in the course of their employment to disclose any of it without lawful authority. The amendment would shorten the wording so that instead of specifically referring to obtaining information by the electoral officer or court official in the course of their duties, it would refer to their obtaining it while the person in question was an electoral officer or court official.
The reason for the restriction on disclosure of jury information is that we want to give greater reassurance to people who are called on to serve in the criminal justice system, and, in turn, to promote greater confidence in it. That is why we want to make the arrangements as robust and precise as possible. The provisions have been crafted deliberately to ensure that the restrictions apply to officials who come into possession of the information in the course of their duties. That, of course, would be while they were in their official posts, but the wording in the amendment is less precise.
Perhaps I can give an example. An electoral officer who was in court as a defendant would not be there in the course of his or her duties. Often in England and Wales, electoral officers have other duties besides their electoral officer’s duties. It is important to define the provision so that it relates to what is done in the relevant post, while performing the relevant duty. Having considered the matter for some time, I think that the clause gets the right balance and the amendment would not add anything to the proposed arrangements.
As a final point, the inadvertent obtaining of information would be specifically dealt with under data protection legislation; there is already legislation to cover people who either inadvertently or deliberately obtain the relevant information by the wrong means.

Lady Hermon: I welcome the Minister’s presence this morning. She has been in attendance before, but did not have the opportunity to speak. Will she confirm that the punishment under the data protection legislation would be equivalent to that set out in the Bill—that is, a hefty fine, six months’ imprisonment, or both?

Bridget Prentice: I cannot give the hon. Lady the exact sentencing guidelines for the data protection legislation, but six months, a fine or both on summary conviction is a pretty standard form of sentencing. I should be surprised if the sentences available under the data protection legislation were anything less. However, I shall write to her if there are significant differences in the sentencing procedures.

Lady Hermon: I am grateful for that explanation, but I am slightly at sea in responding. I think that I took down the Minister’s words exactly and that she said that the provisions had been crafted deliberately and were “as robust as possible.” My concern is that the wording
“in the course of his functions”
pertains only, in clause 9, to an electoral officer or a court official. When the provisions of proposed new article 26A(4), for example, were crafted deliberately, and as robustly as possible, in relation to
“a person...who is...a member of the police service”,
the drafting was altogether different. The provision applies to a member of the police service,
“who obtained the juror information for or in connection with the making of checks, in accordance with jury check guidelines”.
It is not similar to the drafting with respect to electoral or court officials, with its reference to information obtained
“in the course of his functions”.
I am somewhat bemused by the differences in the carefully crafted drafting of the Bill. The Minister indicated that it is to be “as robust as possible,” but one would have thought that consistency of language between the lines of one clause would have helped to make it more robust and give the appearance that it had been deliberately crafted to be robust.

Bridget Prentice: Let me clarify matters. Other officials are also included for specific purposes in relation to jury checks. All those officials are dealt with in specific ways relating to their duties in respect of checks on juries, so there is consistency.

Lady Hermon: That is extremely helpful, and it is good to have it on the record. I appreciate the Minister’s point, which supports the conclusion that I had already reached, which is that I shall seek the Committee’s permission to withdraw the amendment. The discussion on the clause has been helpful, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 ordered to stand part of the Bill.

Schedule 2 agreed to.

Clauses 10 to 12 ordered to stand part of the Bill.

Clause 13

Legal proceedings

Question proposed, That the clause stand part of the Bill.

Lady Hermon: I want to make a few comments on the clause before we nod it through. We have moved on to an interesting chapter on the Northern Ireland Human Rights Commission, and perhaps I can set out some of the background for the benefit of those Committee members who may not be so familiar with the various and numerous commissions in Northern Ireland, whose numbers are growing—we may be a small jurisdiction of 1.7 million people, but we have commissions second to none.
 The Human Rights Commission was one of the early commissions. One of the many outstanding achievements of the Belfast agreement signed on Good Friday was that it set in train the establishment of two statutory bodies—the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission. That would remain an outstanding achievement even if the agreement were to fall tomorrow, which it certainly will not; now that the Democratic Unionist party is prepared to operate the agreement, it has a long and bright future. The Northern Ireland Act 1998 gave the Human Rights Commission specific powers and put the provisions of the Belfast agreement—the international agreement between the Irish and British Governments—on a statutory footing.
If we agree to it, clause 13 will significantly extend the powers of the Human Rights Commission, which is why I should like to draw the Committee’s attention to it for a few minutes. The present wording allows the commission to institute or intervene in human rights proceedings where it is not a victim or a potential victim of an unlawful act and where no award of damages can be made to it.
I am sorry to be a pedant, but will the Minister clarify the use of the word “and” in subsection (2), where we again have a curious construction? Four conditions must be met:
“(a) the Commission need not be a victim or potential victim...(b) section 7(3) and (4) of the Human Rights Act...shall not apply...(c) the Commission may act only if there is or would be one or more victims of the unlawful act, and”—
the conjunction “and” appears only there, at the end of subsection (2)(c)—
“no award of damages may be made to the Commission”.
Will the Minister confirm that human rights proceedings must be ongoing in Northern Ireland and that the commission will not be given a free rein? That is not to criticise the commission—some parties are extremely critical of it, but I am not. However, clause 49—we will come to it in due course, but presumably not this morning—extends the powers of the commission in clauses 13 to 19, beyond Northern Ireland, to England, Wales and Scotland. The hon. Member for Tewkesbury and other Members should consider clause 13 and the extent of the powers that the commission will have in their constituencies.
I would appreciate clarification on clause 13 and the intended remit of the commission, which is regional, unlike the Paris principles of 1991, which are often quoted in support of extending the commission’s powers. The principles pertain to national human rights organisations such as the Irish Human Rights Commission, not to the Northern Ireland Human Rights Commission, which is regional. So will the Minister explain the extent of its powers in clause 13?

Laurence Robertson: I welcome you to the Chair, Mrs. Anderson. I had not intended to speak to clause 13 because I have two amendments to clause 14, although those could have been tabled under this clause. I am concerned about clause 13(2)(c), which says that
“the Commission may act only if there is or would be one or more victims of the unlawful act”.
To save time in our discussions on the next clause, I would like the Minister to answer one brief question: is an unlawful act not better investigated by other authorities? That is the motivation behind my amendments to the next clause, but it might be more convenient for him to answer that question now.

Paul Goggins: I, too, welcome you to the Chair, Mrs. Anderson. I shall respond briefly to the questions put by the hon. Members for North Down and for Tewkesbury. We are now at an important stage of the Bill dealing with the Northern Ireland Human Rights Commission. As always, I applaud the work of the hon. Lady in looking at the detail of the clauses. I shall look carefully at the wording, to which she drew the Committee’s attention, to ensure that it is appropriate.
The hon. Lady is right that clause 13 gives power to the commission to institute legal proceedings provided that there is a victim, even if that is not the commission itself. Rather than a whole host of individuals pursuing legal proceedings, the commission could instigate a test case in order to clarify a point of law instead of relying on individuals to do so. That mirrors the provisions granted to the Commission for Equality and Human Rights in Great Britain through the Equality Act 2006. She drew attention to provisions elsewhere that will bring legislation on the Northern Ireland Human Rights Commission in line with legislation in Great Britain. As long as there is a victim, the provisions enable the commission to take on a test case.

Lady Hermon: I am most grateful to the Minister for that short but precise clarification. Will he confirm that he and his officials will consider whether it would be helpful—I believe it would—to include the word “and” between paragraphs (a), (b) and (c). At the moment, the provision is not clear, and implies that
“the Commission need not be a victim or potential victim of the unlawful act”.
There could be a test case under its own volition without there being a victim.
The commission already has powers—this is where we must be careful—under the Northern Ireland Act 1998 to assist a victim of alleged human rights abuse to take legal proceedings and to support them financially. It would be helpful if the Minister could indicate whether a budgetary commitment will be given to the commission to institute proceedings and test cases when it is not the victim.

Paul Goggins: I do not intend to discuss the budgetary requirements of the commission now. There is a budget and the commission does its work. The provision gives extra rights to the commission and I believe the hon. Lady welcomes that. I assure her that the Committee stage of any Bill usually reveals an “and” or a “but” or an “if” or a “maybe” that is in the wrong place or that an additional “and” may be beneficial. I am happy to consider whether this is one of those instances.

Lady Hermon: With that reassurance, I am delighted for clause 13 to stand part of the Bill.

Question put and agreed to.

Clause 13 ordered to stand part of the Bill.

Clause 14

Investigations: evidence

Paul Goggins: On a point of order, Mrs. Anderson. I seek your guidance. If the Committee wishes to explore or to have an explanation of an amendment tabled by an hon. Member who is not present, is it normal for an explanation to be given, or do we move to the next business?

Janet Anderson: The normal procedure is to move to the next business. If an amendment is not moved, it is not possible to debate it.

Nick Palmer: On a point of order, Mrs. Anderson. Would it assist the Committee if I moved amendment No. 41 to enable it to be debated?

Janet Anderson: It is possible for the Minister to refer to the amendment on clause stand part, and I am sure that he would be happy with that.

Laurence Robertson: I beg to move amendment No. 15, in clause 14, page 11, line 21, at end insert
‘, and
(c) establishes that it has not been investigated by another person because it has been determined that it most properly falls to the Commission to carry out such an investigation.’.

Janet Anderson: With this it will be convenient to discuss the following amendments: No. 16, in clause 14, page 11, line 21, at end insert—
‘(4A) The Commission shall give a reason for the issuing of the notice to the person to whom it is issued at the point of issuing it.’.
No. 42, in clause 14, page 11, line 22, leave out subsection (5).
No. 44, in clause 14, page 12, line 1, leave out subsection (10).

Laurence Robertson: As I said briefly during the short debate on the previous clause, I have one or two concerns about the extension of the commission’s powers, to which the hon. Member for North Down referred. It already has considerable powers under section 69(8) of the Northern Ireland Act 1998 which states:
“For the purpose of exercising its functions under this section the Commission may conduct such investigations as it considers necessary or expedient.”
That is a wide-ranging power and the clause extends it.
My concern is that under clause 13(2)(c)
“the Commission may act only if there is or would be one or more victims of the unlawful act”.
The word “unlawful” prompted me to move the amendment, because if there is an unlawful act, why would it not be more properly investigated by other authorities?
Amendment No. 15 would require the commission to establish that there has been no investigation by another person because it has been determined that it most properly falls to the Commission to carry out such an investigation.
Under amendment No. 16,
“The Commission shall give a reason for the issuing of the notice to the person to whom it is issued at the point of issuing it.”
I am asking the Minister to explain why an unlawful act would be investigated by the commission. Surely other bodies might more properly investigate such an act.

Paul Goggins: I suspect that there is little difference on this issue between ourselves and those on the Opposition Front Bench. The hon. Gentleman is right that, in practice, the commission should work with other appropriate bodies to determine the appropriate body to pursue a particular investigation. Working arrangements are already in place between the commission and similar investigatory bodies. That matter is best dealt with by memorandums of understanding rather than the Bill.
The amendment takes us a shade too far. These investigations and the kinds of issue that the commission will examine are necessarily complex. While we would expect agreement between the relevant bodies as to which was the appropriate one to pursue a particular case, the commission might believe that another body has failed in its duties by not pursuing a particular inquiry. We want to leave in place the power for the commission to pursue such an investigation if it so decides. The normal procedure that we would expect is that when a complaint is made, consideration would be given as to the appropriate body. Sometimes investigations would be carried out jointly between two or more bodies. The commission might make a considered judgment that another investigatory body ought to have conducted an investigation and has not done so, and therefore we wish to leave the power in the Bill for the commission to follow that through.

Lady Hermon: I am enormously concerned about what the Minister has just said. There are other investigatory bodies in Northern Ireland, such as the Police Service of Northern Ireland and the Police Ombudsman for Northern Ireland. Is the Minister telling the Committee that if the Human Rights Commission, under clause 14(4), which is being called into question by the hon. Member for Tewkesbury, takes into its head that the PSNI and the Police Ombudsman for Northern Ireland have not investigated a matter sufficiently, it can have a second bite of the cherry? Police officers on the ground would not be amused or entertained by that idea.

Paul Goggins: The powers in the Bill would allow that to happen. The hon. Lady is assiduous, so she will have looked elsewhere in the Bill and seen that terms of reference have to be given for an investigation. There is also an opportunity for the subject of the investigation to appeal against the decision to the county court. Safeguards are in place for the person who is to be investigated. For example, if the Human Rights Commission wishes to enter a place of detention, there can be an appeal. The commission could not act recklessly, but we want to leave in place the power for it to conduct an investigation if it believes that other investigatory bodies have not carried out what it regards as their duty.

Peter Bone: It is a pleasure to serve under your chairmanship for the first time, Mrs Anderson. Will the Minister clarify a point? If the police had investigated and had made a decision that the commission does not agree with, could that be investigated or would that decision be final?

Paul Goggins: If a complaint is made and the commission judges that another body ought to have conducted an investigation and has not done so, it can carry out that investigation. The Bill empowers it to do so. The hon. Lady praised the commission for some of the work that it has done in recent years and, on Second Reading, she made some powerful arguments in that regard. The commission is a responsible body that behaves responsibly, and it is given these powers so that it can carry out its work.
For the most part, we expect either that another body will carry out the investigation, that it will be done jointly, or that the Human Rights Commission will be the most appropriate body to do it, but we leave the powers in place because they are important.

Lady Hermon: The Minister has taken the wind out of my sails by confirming my worst fears about what we are doing. He knows perfectly well that the historical inquiries team was set up at great expense—it cost millions of pounds—to investigate the 3,000 unsolved murders in Northern Ireland. There is also a commission looking into the disappeared—those ghastly, grisly murders by the IRA in which the bodies were not returned to the families. Is he confirming that if the Human Rights Commission decides that anyone—the police ombudsman, the historical inquiries team or the PSNI—has not investigated a matter sufficiently, it can reopen the inquiry, so that we end up with a truth commission by another name? Is that really what we will get from this provision?

Paul Goggins: I honestly believe that the hon. Lady is unnecessarily concerned. There are, as she says, many other oversight bodies in Northern Ireland, such as the police ombudsman’s office and the historical inquiries team within the PSNI. If one of those bodies undertook an extensive investigation into a complaint and formed a conclusion, that investigation would have been carried out. If the investigation has been carried out, then it has been done. It is only if the investigation has not been carried out and the Human Rights Commission believes that it should have been that it has the power to do so.
I hope that that clarifies the matter and addresses her concerns. There is no opportunity for the commission endlessly to reopen investigations that have been carried out. If other oversight bodies have conducted investigations, they have fulfilled their obligations. It is only if they have not carried out an investigation that the commission may act.

Sammy Wilson: The Minister says that the measure applies only if an investigation has not already been carried out, but that is not indicated in the clause. We know from experience in Northern Ireland that even when there have been extensive police investigations into a case—sometimes two or three—the police ombudsman’s office will, for particular reasons, decide to rake over those coals again. What in the clause prevents the Human Rights Commission, which is trying to establish some credibility after a stormy period, from doing the same thing?

Paul Goggins: I draw to the hon. Gentleman’s attention, as I did the hon. Member for North Down, the other provisions. It is only if the Human Rights Commission believes that a complaint has been insufficiently investigated that it can carry out its own inquiry. It is required to place on record the terms of reference for that investigation, and has to give them to the person or persons who are being investigated. Also, there is a right of appeal against the investigation being carried out. While the clause extends powers, we have safeguards in place to ensure that no frivolous investigations can be carried out.

Laurence Robertson: When I met the Human Rights Commission some months ago, I asked what number of cases it deals with. I cannot remember the exact number, but it passes on to the relevant agencies something like 90 per cent. of the cases that are referred to it. If the relevant agency does not then carry out an investigation to the commission’s satisfaction, is the commission able to take it up again? That seems a ridiculous duplication.

Paul Goggins: Let us be clear about this, and I am grateful to the hon. Gentleman for pointing out that the agreements between the various oversight bodies work in practice. The Human Rights Commission does not seek to investigate everything. If it believes that a complaint is better suited to another oversight body it passes it on. The fact that the Human Rights Commission might suspect that it would come to a different conclusion would not be grounds to carry out its own investigation. Only if the commission believed that the other body concerned did not carry out an investigation that should have been carried out, or if it believed that the other body had investigated insufficiently, would it have the power to carry out its own investigation, subject to all the safeguards that I have described—the need to present terms of reference and the opportunity for challenge and appeal.
I have no doubt that in practice a very sensible approach will be adopted to the arrangements, that the agreements between oversight bodies will continue to work as effectively as they do, and that no frivolous investigations will be carried out, because of the safeguards in the clause.

Sammy Wilson: The Minister has indicated that he believes the Human Rights Commission has not sought to overstep its powers; indeed, he cited evidence given by the hon. Member for Tewkesbury. Does he accept that in many ways the Human Rights Commission has already overstepped its remit by commenting on the war in Iraq, education matters, such as the ending of the 11-plus, and numerous other things? That trend within the Human Rights Commission is already evident. Does he accept that the clause provides an opportunity for it to overstep its remit further?

Paul Goggins: The hon. Gentleman himself—I give him credit for it—previously highlighted the Human Rights Commission’s commitment to being seen as a credible body in Northern Ireland. I think he acknowledged that in his terms there had been positive movement in that direction. We are considering powers to carry out investigations, rather than to pass comment on matters that may or may not be of interest to the general public. I ask him to focus on the powers that are being given in the clause.
I do not think that the hon. Member for Tewkesbury referred—not in great detail, anyway—to amendment No. 16, which would require the commission to provide a reason for issuing a notice for evidence at the point of its issue. I agree with the sentiment, although as the hon. Gentleman will have noted and as I have mentioned, clause 16 would require the provision of terms of reference, including the specifying of a period in which the investigation must be concluded. That requirement will be sufficient and I hope that he will be satisfied with that.
I shall reserve any other comments that I might have made on other amendments in the group for another opportunity.

Laurence Robertson: I am grateful for the Minister’s explanation of the way in which the clause is worded. I remain concerned, however, for the reasons that I and other Opposition Members have given. As I mentioned, the commission often in practice passes a complaint on to a body that it presumably thinks might more appropriately, at that point, investigate the unlawful acts or the other issues in question. The power then to pass judgment on whether the matter has been sufficiently investigated by the other body puts it in a very powerful position—almost more powerful, in some ways, than the police, for example. Will the commission have available to it all the facts that would be available to the police, because it is to be able to judge whether the police, for example, have sufficiently investigated the unlawful act? I am very uncomfortable with that.
That said, and having listened to the Minister’s explanation, perhaps my amendments do not fully address my concerns. I do not know whether you are minded to allow a stand part debate on the clause, Mrs. Anderson.

Janet Anderson: indicated assent.

Laurence Robertson: We may have to consider voting against the clause. I am not satisfied that the role of the commission is likely to be carried out properly, given the extension of its powers.

Paul Goggins: Let me repeat that this is not an unbridled power to examine and investigate willy-nilly anything and everything that may be of concern to the commission, and the hon. Gentleman should bear that in mind when he considers whether to support the clause. The commission must provide terms of reference and there is an opportunity to appeal against the decision to carry out an investigation—in other words, there is judicial oversight of the commission’s power to carry out investigations. Indeed, if there were any serious question that the commission was being frivolous or attempting to duplicate an investigation that had been thoroughly carried out elsewhere, its decision could be challenged in court.
I hope that the hon. Gentleman will be reassured by that when he reflects on whether to support the clause. We want to give the commission the proposed additional powers, but they are still subject to safeguards and scrutiny that would result in decisions being taken to court. I hope that that will be sufficient to encourage him to support the clause and withdraw his amendment.

Laurence Robertson: I am grateful to the Minister again. I still have a lot of concerns about the general drift and about the way in which the commission is going. When it was set up under the 1998 Act, it had considerable powers, and it could be argued that they are quite sufficient. I am uncomfortable about giving the commission further powers, including the power to consider whether
“the matter to which the notice relates has already been sufficiently investigated by another person”,
but we will see how the clause stand part debate goes. For now, however, I do not think that the amendments are sufficient, so I shall not press them. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Lady Hermon: In fairness to the hon. Member for Foyle, who is not here to move his amendments, let me say that he diligently attends to all his parliamentary duties in the House, but that he had to fly to Dublin yesterday—I know that that is no excuse—and had a commitment in Belfast this morning. I am sure that no offence is intended to you, Mrs. Anderson, or to colleagues on the Committee.
I oppose the clause because I am deeply concerned about the ramifications of what we have just discussed. We have had a useful debate so far about what appeared to be a quite innocuous extension of the powers of the Human Rights Commission. I am not a great critic of the commission, as the Minister said, but I want us to be consistent and get things right, and we have the opportunity to do so while the Bill is before us. 
The Minister tried to assuage the fears of the hon. Member for Tewkesbury by responding with what it is quite right to call the facts. The facts are that an appeal could be taken to the county court where the commission has served a notice on an individual and drawn up terms of reference under later clauses. That is all well and good if a person can afford to take an appeal to the county court, but let us think of the many police officers who retired under the Patten package.
After the Belfast agreement, we had the Patten report, and many police officers left what was the Royal Ulster Constabulary—I am, of course, married to a former chief constable of the RUC, although that is not relevant; I merely draw it to the Committee’s attention to it. I am extremely concerned about the situation in respect of the police ombudsman investigating complaints of alleged police misconduct by serving or past officers. Many past officers receive no financial assistance in making a court challenge to a decision of the ombudsman.
The same situation will apply when, under subsection (4), the Human Rights Commission alone decides to issue a notice when it has
“considered whether the matter to which the notice relates has already been sufficiently investigated by another person, and”
when, in its wisdom, it has
“concluded that it has not.”
The commission will make an entirely subjective decision about whether to proceed with an investigation.
Subsection (6) states:
“where the Commission thinks that a person—
(a) has failed without reasonable excuse to comply with a notice”.
Most bizarrely of all, it goes on to state:
“or
(b) is likely to fail without reasonable excuse to comply with a notice.”
The commission will decide on whether a person has failed, or is likely to fail without reasonable excuse, to comply with a notice. The matter then becomes an offence; subsection (8) states that someone “commits an offence” if they do not “comply with a notice”.
By dint of the clause, we will again give powers to the Human Rights Commission that mean that the person at the other end—the one who is receiving the notice of an investigation—is seriously disadvantaged in terms of financial support should they apply to the county court to get rid of the wretched notice.
If the Minister is intent on driving forward with the clause, I should remind him of the suggestion that I made on Second Reading. We have a chief inspector of criminal justice, a post established by the Justice (Northern Ireland) Act 2002, who can examine the Police Service of Northern Ireland, the police service reserve, the state pathologist and the Office of the Police Ombudsman for Northern Ireland. The clause gives extensive powers to the Human Rights Commission, which is not accountable to, or reviewable by, any other body, but it should be—it ought, at least, to be inspected. I urge the Minister not to tell the Committee that the commission is independent and therefore cannot be open to review by the chief inspector of criminal justice, because he knows full well that the Office of the Police Ombudsman for Northern Ireland is also a statutory independent body and that it is reviewable and can be inspected by the chief inspector of criminal justice.
The precedent has been set, so when Minister defends the clause, as he will do, I urge him to assure the Committee that he will seriously examine extending the powers of the chief inspector of criminal justice, so that people can have confidence that the Human Rights Commission is not off on a frolic of its own trailing through past cases that have already been investigated by the police ombudsman, the PSNI and various other bodies. I am horrified at the manner in which the clause stands at present, and I shall certainly vote against it.

Peter Bone: Will the Minister answer a question on subsection (4)? It states:
“The Commission may issue a notice under subsection (1) only if it has—
(a) considered whether the matter to which the notice relates has already been sufficiently investigated by another person”.
Surely that is a Catch-22 situation. The commission has to investigate initially to find out whether there has been a sufficient investigation. The drafting is so woolly. The Minister is allowing the commission to investigate on any grounds at any time. Is that not really the case?

Sammy Wilson: My view of the Human Rights Commission is slightly more jaundiced than that of the hon. Member for North Down, in the same way that my view of the Belfast agreement is much more so than that of the hon. Member for Foyle. The hon. Lady made the scurrilous allegation that my party has accepted that agreement. She need only listen to the hon. Member for Foyle and his party to know that they believe that we are practically rewriting it. But I shall leave that to one side—I just felt that I had to rise to the bait that she threw out.
The Human Rights Commission has been in turmoil. It is a newly formed body with a very turbulent first few years, in which it has shown no ability even to operate its current powers. The commissioner left under a cloud and the institution is still finding its feet. Under those circumstances, to give it more powers is inappropriate and premature. As with all groups, it is trying to establish itself and prove its worth, so the tendency will be to push the boundaries as far as possible. Clause 14 almost encourages it to do that. There is no restriction on the investigations that it could undertake. The commission will conclude whether a matter has been investigated sufficiently by another person. That is totally subjective. There is no objectivity in it at all. It will be totally dependent on the view of the commission.
 The commission might see value to itself in certain cases. For instance, some might raise its profile positively, whereas others might be pursued owing to political push, or vociferous groups or individuals—that will be the tendency. The Minister said that if anyone feels aggrieved that the commission has overstepped itself and that a full investigation has been conducted already— the hon. Member for North Down pointed this out—the onus will be on them to challenge the commission’s decision, but without its resources. Do not forget that the commission is backed up by huge public resources whereas a private individual might not have any at all. Police officers in my constituency—it might not be just police officers—have found themselves in that position with the police ombudsman. There is the same potential with the commission.
I do not believe that the commission has made the case for an extension of its powers. The Minister knows that it wants to push the boundaries of its powers as much as possible—so much so, in fact, that he had to accept in the consultation document that much of what it asked to be included in the Bill could not be accepted because it went beyond what the Government see as its remit. I suspect that having turned down some of its milder requests for the extension of its powers, the Government have thrown the provisions before us as a sop to the commission. The decision to include them in the Bill should not have been made on that basis and, therefore, we will join the hon. Member for North Down in opposing clause 14.

Laurence Robertson: I shall not go over the arguments raised when I discussed my amendments, nor indeed those arguments put forward by the hon. Members for North Down and for East Antrim; I shall just reiterate my concern.
Clause 14 says insert “69A Investigations: evidence”, and:
“For the purpose of an investigation...the Commission may by notice in writing require a person—”
to provide information, documents, oral evidence and so forth. As hon. Members have said, there is no comeback for the person who is required to provide that evidence, unless he has unlimited funds, which few people have. I remain concerned about the extent of the powers that commission has, and indeed seeks.
In the documents that the commission sent presumably to all hon. Members on the Committee, it complains that clause 14 also severely limits the capacity of the commission to investigate anything connected with national security. My goodness, should a human rights commission be investigating matters of national security? It should not, but that is its drive. The Minister does not want it to happen, but the commission certainly does.

Paul Goggins: We have not had the opportunity to touch on national security issues, but the hon. Gentleman knows from examining the clauses on the Human Rights Commission that it will not be able to investigate matters of national security.

Laurence Robertson: Indeed, and I do not accuse the Minister of wanting the commission to do so. However, that is its drive, that is the way it is pushing and that is of great concern.
With those few remarks, I remain dissatisfied with clause 14. I look forward to the Minister’s response, although we have probably heard most of it already. We will see how we go.

Paul Goggins: The Minister will try not to be too repetitive, but I regret that that may be the case.
The hon. Members for North Down and for East Antrim raised the issue of legal aid. I expect that if the Human Rights Commission had issued a notice about an investigation to an individual, they would be entitled to legal aid, subject to the usual merits and means test that would apply to any legal aid application in any proceedings. However, it is important to remember that in most cases, the commission will investigate not individuals but organisations. That will be the normal type of investigation. The idea of the commission harassing and haranguing the penniless person is inaccurate.

Laurence Robertson: It is possible.

Paul Goggins: If somebody satisfied the means and merit tests, they as an individual would be able to apply for legal aid and they would have the wherewithal to counter the commission’s notice. I shall confirm that point to my satisfaction, and if turns out to be untrue I shall write to hon. Members to make them aware. For the most part, however, the commission will investigate organisations and the issue will not arise.

Lady Hermon: Will the Minister point to a single clause in this extensive Bill stating that the commission will mostly investigate organisations? Is there anything in the Bill to support the claim? Without repeating what I have just pointed out to the Minister, the vast majority of retired police officers on their pensions will not qualify for legal aid. That was the problem when we discussed investigations by the police ombudsman. Such an investigation is an enormous ordeal, and to come through it and have it reopened without the assistance of legal aid—despite reassurances to the Committee—by an unaccountable Northern Ireland Human Rights Commission is unacceptable and unreasonable.

Paul Goggins: It is unusual for the hon. Lady to paint an exaggerated picture, but with that argument I fear that she has. I have already assured the Committee, and I shall offer the following reassurance to her: an individual or organisation that has been through the investigation she describes would have undergone a thorough investigation, so in practice the commission would have no ground on which to conduct its inquiry and investigation. The investigation would already have been carried out thoroughly. If someone has been subjected to a thorough and long-running investigation, it is highly unlikely that the Human Rights Commission would reopen it. That would just not occur in real life, and I suggest that the hon. Lady is painting a slightly exaggerated picture.

Peter Bone: Even in his answer the Minister said that an investigation was highly unlikely, which means that it could happen. How on earth can he guarantee that it would not when the commission has to investigate whether the original investigation was thorough enough?

Paul Goggins: The hon. Gentleman made that point earlier. Clearly, the commission must have grounds for believing that an investigation was insufficient. I have said that that is subject to terms of reference being drawn up, and to appeal. A safeguard is in place to ensure that frivolous inquiry does not take place.
The hon. Gentleman brings us to the nub of the issue. The Human Rights Commission is independent, so there must be a point at which it is free to make its own judgment and decisions, and to carry out its own investigations. If it is not truly independent, it cannot be trusted absolutely to do the job that we expect it to do. Of course, there are restrictions in place—for example, in relation to national security—and there are safeguards in the terms of reference and appeals.
There must be an element of independence. We may not always like the investigations that are carried out or the conclusions that are reached, but the commission must have that so that it has credibility for the public generally. Being able to make a judgment on whether there has been sufficient investigation is a firm guarantee of an overall system of scrutiny in Northern Ireland that is fit for purpose and does the job.

Laurence Robertson: To coin a phrase.

Paul Goggins: Perhaps I should withdraw that comment.
In most cases, the conclusion when an investigation had already been carried out would be that a sufficient investigation had been carried out, thus guaranteeing oversight, which is considerable in Northern Ireland with the ombudsman and so on. The provision is a guarantee that the oversight system works in practice.
I am sure that hon. Members in Northern Ireland and others will be assiduous in asking questions about how many investigations are carried out and so on, and the commission will publish its own reports so we will be able to see how the system works in practice. I believe that it will be independent, albeit with greater powers that will occasionally enable it to carry out an investigation, but for the most part it will offer a guarantee that the overall system works effectively.

Laurence Robertson: The clause is written with reference to “person” rather than “person or organisation”, which gives rise to the concern expressed by the hon. Member for North Down. I know that it is difficult to give a specific example without warning, but could the Minister give an example of the sort of cases that the powers will enable the commission to investigate?

Paul Goggins: If a complaint had been made to the commission by someone in prison about something that had happened there, it would immediately refer the matter to the prisoner ombudsman. That would be the appropriate oversight person to carry out the investigation. If subsequently—perhaps six months later—the prisoner contacted the commission saying, “I was in touch with you. You recommended that the prisoner ombudsman carry out the investigation, but he has never been in touch with me,” the commission would first inquire of the ombudsman why the investigation was not carried out. If the ombudsman said, “Well, I had a look at it and decided not to do so,” and the commission felt that there were grounds for an investigation, it could investigate.

Laurence Robertson: It is duplication.

Paul Goggins: There is no duplication because, as the hon. Gentleman said, the vast majority of complaints will be handed over to the appropriate body and followed through in a thorough and timely way. The power enables us all to be certain that all complaints will be properly investigated and that an appropriate response will be made.
I want to make a little progress. I reassure the hon. Member for North Down, who at least once—twice, I think—mentioned the prospect of retired police officers being investigating by the Human Rights Commission when they had already been the subject of other investigations. The Bill includes a start date of January 2008, so the prospect of such retired officers being subjected to investigation by the commission does not arise. The commission is not part of the criminal justice system and therefore it is not appropriate that it should be under the scrutiny of an inspectorate. That is a simple matter of fact.
I want briefly to allude to one or possible arguments in relation to other propositions that might have been made. It is very important—we have included a relevant provision in the Bill—that the Human Rights Commission cannot force people to produce information that other legislation prevents them from providing. For example, if someone is prevented under data protection legislation from providing information, the Human Rights Commission cannot compel that person to provide it. The Bill makes that clear.
We spent considerable time explaining to the hon. Member for Foyle why we wanted to retain limited rights of appeal, whereas he encouraged the Committee to press for broader rights of appeal, and I am intrigued to note that some of his amendments would have removed rights of appeal altogether. I have made clear to the Committee the importance of a right of appeal against the issue of a notice, to preserve the right balance.
It is of course important that the Human Rights Commission cannot be in a position to compel the prosecution services, for example, to provide information. The prosecution service must make a judgment and it would be wrong for it to be forced to bring information about the decision in question before the Human Rights Commission.

Sammy Wilson: I thank the Minister for his observation in which, perhaps unintentionally, he exposed one of the difficulties faced by the Human Rights Commission—that it is seen as a fairly partisan body with which those on the nationalist side would have more sympathy and which they would regard as more sympathetic to their point of view than to others. I suspect that that is why the hon. Member for Foyle, who is not here to answer for himself, wants fewer powers of appeal against the Human Rights Commission than he wanted in relation to matters that we discussed earlier.

Paul Goggins: We can only speculate about arguments that might have been put to the Committee. However, I am sure that the hon. Gentleman will agree that we need to arrive at a point in Northern Ireland at which all the relevant bodies—whether the Human Rights Commission or the Police Service of Northern Ireland—serve the interest of all communities there, and are perceived to be doing so.
In conclusion, the fines in the clause are appropriate. Furthermore, it is important that we have an exclusion for matters of national security intelligence because it would be quite wrong if the commission were in a position to force intelligence to be passed into its hands and into the public domain. It is therefore important that we have the relevant restriction in place.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 10, Noes 4.

Question accordingly agreed to.

Clause 14 ordered to stand part of the Bill.

Janet Anderson: We were now to have discussed amendment No. 46 to clause 15, in the name of the hon. Member for Foyle. Let me say for the benefit of the Committee that the hon. Gentleman did me the courtesy of sending me a letter explaining that he would not be able to be here this morning, but that he hopes to be here this afternoon.

Clauses 15 to 18 ordered to stand part of the Bill.

Clause 19

Timing

Alan Reid: I beg to move amendment No. 52, in clause 19, page 15, line 35, leave out ‘1st January 2008’ and insert
‘the coming into force of this section’.

Janet Anderson: With this it will be convenient to discuss amendment No. 53, in clause 50, page 29, line 20, at end insert—‘( ) section 19;’.

Alan Reid: It is a pleasure to serve under your chairmanship this morning, Mrs. Anderson.
The amendments would allow the commission to start investigations when the Bill comes into effect, rather than on 1 January 2008, as laid down in the clause. On Second Reading, we raised concerns about the clause preventing the commission from using its new power to compel evidence retrospectively, except in situations existing on, or arising after, 1 January 2008. The commission will be prevented from investigating anything that has already happened or which may happen in the rest of the current year.
The clause will prevent the commission from compelling evidence or accessing a place of detention for the purpose of investigating any matter relating to the period before 1 January 2008. The commission could not, for example, require the production of any document created before that date, even if it was directly relevant to a human rights violation that existed on or after 1 January 2008. That is an unnecessary restriction.
The effect of the time limit is particularly severe in relation to gathering evidence. It is difficult to imagine how any alleged human rights violation could effectively be investigated without looking to events and information in the time leading up to it. In practice, it could be a considerable time after 1 January 2008 before the commission could effectively use its powers.
The clause creates a notable anomaly in relation to the protection of human rights in Northern Ireland, as opposed to other jurisdictions in the UK. In Great Britain, the existing equality bodies already have powers to compel evidence, and the new Commission for Equality and Human Rights acquired similar powers under the Equality Act 2006.
The Scottish Commission for Human Rights Act 2006 contains not only evidence powers, but a right of entry to places of detention without any time restrictions. Thus in England, Scotland and Wales, the equivalent bodies of the Northern Ireland Human Rights Commission have and will have powers with no arbitrary time limit. The same is also the case in the Republic of Ireland, where the Irish Human Rights Commission, which was established in parallel with the Northern Ireland Human Rights Commission as a result of the Belfast agreement, has extensive powers to compel evidence with no such time limit. The agreement, and the corresponding treaty, committed the United Kingdom and the Republic of Ireland to maintaining an equivalent level of protection of human rights in Northern Ireland and the Irish Republic.
Having regard to the particular circumstances of Northern Ireland, the Committee will want to consider whether, in the interests of normalisation, confidence building and conflict resolution are served better by enabling or blocking the investigation of past human rights violations. The commission’s primary focus should always be on preventing such abuses, but its effectiveness in that regard, particularly in relation to its credibility with public authorities, is hardly enhanced by fettering its discretion as to what it may or may not investigate.
As I have said before, the treatment of other oversight bodies is illuminating. The Commission for Equality and Human Rights, established under the Equality Act 2006, has powers to investigate with no limitations on timing. The Equality Commission for Northern Ireland has numerous powers of investigation that are not subject to limitation based on the time at which the matter being investigated arose. The Commissioner for Children and Young People (Northern Ireland) Order 2003 specifically applies, in article 27, to matters that come before it. We should also consider the RUC (Complaints, etc.) Regulations 2001. However, under regulation 6, in cases where a police officer may have committed an offence or may be subject to disciplinary proceedings, the ombudsman has discretion if she believes that the matter should be investigated because of the gravity of the matter or the exceptional circumstances. In suitably grave matters, the Police Ombudsman for Northern Ireland investigates matters stretching back to the 1970s.
Clause 19 serves no useful purpose in terms of the protection of human rights and should either be left out or amended. Our amendment would mean that the powers under clause 19 would come into effect with the passing of the Bill. I see no reason for the delay until January 2008. It is not just investigations after 1 January 2008 that would be hindered. Investigations after that date would be hindered by the clause, because the commission would not be able to acquire documents created before that date.
We have reservations about the clause as a whole, but it could be improved by bringing forward the implementation date from 1 January 2008 to the date when the Bill comes into effect.

Paul Goggins: I will not detain the Committee long on this issue. The Committee will be aware of the bodies and public inquiries in existence in Northern Ireland, which look back into history and try to deal with matters. There is the historical inquiries team within the PSNI, the police ombudsman and so on. My right hon. Friend the Secretary of State is clear that the new powers that we are giving to the Human Rights Commission should be forward looking. That is why we set the start date of 1 January 2008.
There is a technical flaw with the hon. Gentleman’s proposal. He seeks to delete the date of 1 January 2008 in one part of the clause but leaves it in subsection (3). He might want to reflect on that when deciding whether to withdraw his amendment.
Since Second Reading there has been some discussion between my right hon. Friend and the Human Rights Commission, not with a view to opening up endless investigations into the past, but about some concerns of the commission about conducting its present business because of the implementation date that we have set. We are giving that matter some consideration.
I have listened to the hon. Gentleman’s arguments and if we decide to make any changes, we shall table our own amendment on Report.

Alan Reid: In view of what the Minister has said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 ordered to stand part of the Bill.

Clause 20

Stop and question

Laurence Robertson: I beg to move amendment No. 18, in clause 20, page 16, line 11, leave out ‘necessary’ and insert ‘reasonable’.

Janet Anderson: With this it will be convenient to discuss the following amendments:
No. 19, in clause 20, page 16, line 12, at end insert
‘, if he suspects that he may be able to provide information about a recent explosion or another recent incident endangering life, or the effects thereof.’.
No. 20, in clause 20, page 16, line 14, leave out ‘necessary’ and insert ‘reasonable’.

Laurence Robertson: The amendments refer to the stop and question powers of a member of Her Majesty’s forces on duty or a constable. The clause says:
“A member of Her Majesty’s forces on duty or a constable may stop a person for so long as is necessary to question him to ascertain his identity and movements.”
Why is “necessary” used rather than “reasonable”, which is more frequently used in such cases? Another amendment in the group before us would qualify subsection (1) by adding
“if he suspects that he may be able to provide information about a recent explosion or another recent incident endangering life, or the effects thereof.”
My amendments would offer a belt and braces approach: one tries to change the wording to “reasonable” rather than “necessary”; and another would add the provision that there must be a good reason to stop and question people. Why has the Minister approached the issue as outlined in the clause?

Paul Goggins: It is always an interesting stage in Committee when we start debating the difference between words like “reasonable” and “necessary”. However, the hon. Gentleman makes an important point. For the understanding of the court, “necessary” has a better and clearer meaning than “reasonable”. “Reasonable” would cast the mind over a wider range of circumstances, and the important point is that the provision takes into account the mind of the officer when they make their decision to carry out their actions. Their mind cannot lack certainty or clarity when they make that decision. If they were to make a decision that turns out to have been unnecessary, it would be discovered in due course and they would have to face up to the consequences. “Necessary” is clearer in law than “reasonable”, and we want to provide for certainty in such circumstances.

Laurence Robertson: The Minister knows that “reasonable” is the most important word in the legal system, because, as we discussed in a previous sitting, the man on the Clapham omnibus uses it to determine what is reasonable. We cannot discard the word; it is in almost if not every Bill that we pass. Why is “necessary” used here? If we consider the matter in terms of the person being stopped, “necessary” means potentially forever.

Paul Goggins: The hon. Gentleman makes an important point about “reasonable” and its significance, but he must consider a situation in which an officer has to make a decision about whether to stop and question an individual. The certainty provided by “necessary” enables the officer to make a quick decision, which they will need to make in the circumstances. “Reasonable” would cause them to reflect longer in order to satisfy themselves that their actions were reasonable. In that period something may happen: the person may disappear or an event may take place. We seek to provide for certainty in the mind of the officer when they make that decision. “Necessary” does so; “reasonable” would make for wider consideration.

It being twenty-five minutes past Ten o’clock, The chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One o’clock.